|The matter before the Supreme Court Appeal (the “SCA”) dealt with the question of whether the Johannesburg High Court (“the court a quo”) was correct in granting summary judgment against the First and Second Appellants (“Appellants”). Should this question be answered in the affirmation, the question then would be whether the court a quo was correct in declaring the immovable property of the Second Appellant specially executable in this instance.
The First Appellant’s, NPGS Protection and Security Services CC (“NPGS”) main business is the provision of security services. Its sole member is the Second Appellant, Llewellyn Rwaxa. The Respondent is FirstRand Bank Ltd. The Respondent and the First Appellant concluded a written credit facility agreement (“loan agreement”) in terms of which the Respondent advanced an amount of R250,000.00 to it as “working capital”. In this regard, the Second Appellant bound himself as surety and co-principal debtor in favour of the Respondent for payment of all amounts due by the First Appellant to the Respondent. This Loan was further secured by a covering mortgage bond registered by the Second Appellant over his immovable property, being his primary residence, in favour of the Respondent.
In 2017 the Respondent issued summons against the Appellants for payment of R649,197.39, on the basis that the First Appellant had defaulted on its repayment obligations for a period exceeding 20 (Twenty) days. To this end, the Respondent invoked the Suretyship signed by the Second Appellant, as well as the mortgage bond registered in its favour. The Respondent applied for an Application for Summary Judgment, which was supported by an affidavit in terms of Rule 32(2) of the Uniform Rules of Court. This was resisted by the Appellants, where the Appellants emphasised that it was not possible to determine how the amount claimed by the Respondent was made up, due to the fact that this amount, in terms of the Loan agreement, was capped at R250,000.00. The Court a quo rejected this assertion made by the Appellants on the basis that same did not constitute a bona fide defence. The court went on to then declare the Second Appellant’s immovable property specially executable.
|The first question before the SCA was whether the court a quo had correctly granted summary judgment against the Appellants. In this regard the Appellants placed emphasis on the fact that the amount which was claimed by the Respondent was not confirmed, prima facie, by a certificate of balance. In this regard the Appellants highlighted that the Respondent specifically relied on the certificate of balance in respect of its claim that they were indebted to it. Accordingly, the Appellants were unable to determine how the amount claimed was calculated, especially given that the loan agreement was limited to R250,000.00. The Appellants further submitted that the Respondent had not revealed a statement of material facts as to when the loan agreement was increased beyond the aforementioned amount.
In terms of Rule 32(3) an opposing affidavit must fully disclose the nature and grounds of the defence and the material facts relied upon, accordingly a bare denial is insufficient. It goes without saying that if a party wishes to dispute an amount claimed he should say so and set out a factual basis for such denial. Accordingly, it was clear that the assertions made by the Appellants disclose no defence and for that reason amounts to a bare denial. The SCA ultimately found, that in light of the circumstances, the court a quo was in fact correct in granting the summary judgment.
The question then follows, whether the court a quo was correct in declaring the immovable property of the Second Appellant specially executable. In this regard, the SCA was divided.
The court a quo emphasised that in terms of Section 26 of the Constitution and Rule 46(1), the Appellants were invited to place facts before the court in the event that they wish to contend that the right enshrined in section 26 would be implicated, in that the Second Appellant would be rendered homeless by the order of execution against his immovable property being enforced. The Appellants opposing affidavit resisting summary judgment did not deal with the Respondent’s prayer for the execution against his immovable property, and was raised through arguments presented to the Court by their Counsel. The Court a quo summarily dismissed the Counsel’s submission and granted the order. The Appellant’s were of the opinion that the issue of primary residence was a matter of law which could be raised from the bar, without setting it out in the affidavit opposing the summary judgment.
The Court a quo declined to exercise its execution oversight on the basis that, in the circumstances of the case, the Second Appellant was not entitled to such oversight because the principle debtor was a juristic person while ignoring the manner in which the issue was raised and couched. That being said, it is only once the Court has considered all the relevant circumstances is it empowered to order the execution against immovable property, this is especially the case where the immovable property in question is a primary residence (Jaftha v Schoeman & others; Van Rooyen v Stoltz & others  ZACC 25; 2005 (2) SA 140 CC). – Court’s Emphasis
Accordingly, had the court a quo exercised its oversight such an enquiry would demand that consideration be had for the following:
- Whether the property in question is indeed the Second Appellant’s primary residence
- Whether the principal debtor or the Second Appellant own sufficient movable assets which can be realised to cover the judgment debt. When considering this cognisance must be had for Rule 46(1)(a)(i) which dictates that execution against immovable property of a judgment debtor is not competent unless there has first been execution against movable property AND a nulla bona return has been made in respect thereof.
The Second Appellant is not entitled to judicial oversight in terms of section 26(3) of the Constitution for two reasons:
- The loan in question was obtained by the Second Appellant for finance his business and not to purchase his home; and
- The Appellants were legally represented in the Court a quo and the prayer that the Second Appellant’s immovable property be made specially executable was brought to the Appellant’s attention in the Respondent’s Particulars of Claim. Thus, the Second Appellant was afforded ample opportunity to properly place the relevant circumstances before the Court.
It is clear that the court a quo misconstrued the issue at hand, which was whether the execution against the Second Appellant’s immovable property could potentially jeopardise his right to have access to housing.
The enjoyment and protection of fundamental rights, such as the one enshrined in Section 26, cannot depend on subjective factors such as the quality of one’s legal representation. The court is enjoined by the Constitution to exercise judicial oversight in all matters where orders for execution against primary homes of judgment debtors are sought.
According, the Court a quo ought to have exercised its execution oversight and as such the matter is to be remitted to the court for it to consider the matter afresh on the correct basis (Mkhize v Umvoti Municipality & others  ZASCA 184; 2012 (1) SA 1 (SCA)). Accordingly, the SCA dismissed the appeal with costs.
This case emphasised the importance of making substantial averments in an opposing affidavit, especially where same is in response to an Application for Summary Judgment which demands more than a bare denial of the allegations advanced by an applicant. One is not to rely on superfluous defences which are dealt with more fully and substantiated by Counsel at a later stage.
Written by Kirsten Chetty and supervised by Omphile Boikanyo